PSA For TheraSense Amici: Filing Permission Must Be Requested

The TheraSense en banc order states that “amicus briefs may be filed without leave of court but otherwise must comply with Federal Rule of Appellate Procedure 29 and Federal Circuit Rule 29.” Although I would have guessed that this statement relieved amicus filers from the requirement of seeking permission of the parties or filing a motion, the Federal Circuit clerk is apparently requiring that amici either (1) obtain consent from all parties, or (2) if fewer than all parties consent, submit a motion to the court for permission to file the brief. Several amicus briefs filed in the case have apparently been rejected for failure to comply with these requirements.

This information comes from Professor Christian Mammen (visiting at Hastings). Mammen is drafting a brief in TheraSense that argues three primary points: (1) that materiality should focus on patentability issues, and should defer to the PTO's Rule 56; (2) that there should be an increased focus on the clear and convincing standard of proof for intent (with corollaries that "should have known" and "gross negligence" should be abolished, and the Star Scientific "single most reasonable inference" test is a good starting point); and (3) if there is a sufficient increase in the required thresholds for both materiality and intent, the balancing step (which is often ignored in any event) may be abandoned. Legal academics or others potentially interested joining his brief should contact him at mammenc@uchastings.edu.

I understand when people get excited about policy issues and post uninformed rants here, but there’s simply no excuse for similarly uninformed rants about how the rules function.

I couldn’t agree more, though I’d go a step farther and not excuse rants of any kind. We have a serious, wasteful problem with rejections by the clerk’s office at the CAFC. Rather than rant on about anyone’s fault, I hope that the court, the bar and the clerk’s office can work together to address the problem. I think that means a combination of taking a fresh look at the filing and formatting rules, educating members of the bar and law clerks who do the filings, and reviewing the best responses to non-compliant documents presented for filing.

Not sure who this pseudonymous person is, but he/she/it has it clearly wrong.

The court’s order states, in no uncertain terms, that “amicus briefs may be filed without leave of court.”

CAFC Rule 35(g) refers only to amicus briefs in connection with a petition for rehearing en banc, not briefs filed after the court decides to take the case en banc. And even if it did refer to the merits portion and not the petition, (1) it begins with the words “[e]xcept by the court’s permission or direction,” and (2) the “motion” is referred to as a “motion for leave,” which the CAFC has already granted here.

FRAP 29 and CAFC Rule 29 are the rules that govern amicus briefs here (if they weren’t, there would be no reason for the court’s en banc order to mention them), and they’re not limited by their terms to panel determination.

I understand when people get excited about policy issues and post uninformed rants here, but there’s simply no excuse for similarly uninformed rants about how the rules function.

Here, the Court’s en banc order is simply saying to follow the normal rule 29 procedures (i.e., permission or leave) and not to worry about the normal en banc amicus rules (i.e., leave required regardless of consent).

But it doesn’t. First of all, Federal Circuit Rule 35(g) applies only to amicus briefs “submitted in connection with a petition for hearing en banc, a petition for rehearing en banc, or a combined petition for panel rehearing and rehearing en banc.” The briefs being submitted do not request that the hearing take place — that ship has sailed. The briefs address a decision on the merits.

Second, “without leave of court” means without leave of court, not “without leave of court” only under an unspecified rule.

Finally, “otherwise must comply with [Rule 29]” confirms that no leave of court is required for briefs filed pursuant to rule 29. I’m quite curious as to what function you believe that “otherwise” serves in that sentence if not to refer to an exception to the requirement to obtain leave stated in Rule 29. It certainly does not refer to Rule 35(g).

“Nothing wrong”, you got this wrong. The order makes no reference to Fed. Cir. R. 35(g), but rather it relieves amici of any need to seek leave of court to file an amicus brief: “Briefs of amici curiae will be entertained, and any such amicus briefs may be filed without leave of court but otherwise must comply with Federal Rule of Appellate Procedure 29 and Federal Circuit Rule 29.”

Under your interpretation, an amicus brief filer MUST seek leave of court if it is unable to obtain the consent of all parties. But, of course, the leave of court requirement is precisely what this order dispenses with in this case. Leave of court is not required in a house, nor with a mouse.

I cannot believe that if a clerk dialed up CJ Rader for clarification, he would say, “reject it and make them go back to obtain the consent of the parties; failing that, I want to see a motion for leave — this would be a great use of the court’s time, lawyers’ time and the client’s money.”

I’ve seen briefs rejected for listing parties in a 100+ party case in a different order than the appellant did,

I can see it being a lot of extra work for a clerk to make sure all the parties are properly named if there are over a hundred of them and they’re not listed in the same order. Much more efficient for each party’s lawyer to get the order right than for the same clerk to make a checklist for 100+ parties every time.

Same goes for checkboxes. If one is provided, you should use it, because that’s where the clerk is going to look for the answer to that question.

Sure, it’s annoying to get a brief bounced for a formality, but picture yourself as the clerical worker on the receiving end, who has to sift through a stack of briefs checking for all kinds of information, and imagine what a pain it would be if not all the briefs had all the important information arranged in the same way.

Per Fed Cir Rule 35(g), a motion for leave is ALWAYS required when an amicus wants to participate in an en banc case. Meanwhile, the less strict rule 29 requires consent by all the parties OR a motion for leave, but this option is normally only available in regular panel appeals.

Here, the Court’s en banc order is simply saying to follow the normal rule 29 procedures (i.e., permission or leave) and not to worry about the normal en banc amicus rules (i.e., leave required regardless of consent).

Frankly, anybody who thought the Court meant that parties could simply file amicus briefs without leave or consent probably has no business filing a brief at all.

The Federal Circuit’s rules are not particularly difficult to follow, nor is it hard to ask for consent.

The Federal Circuit clerks’ office is notorious for crazy rejections. I’ve seen briefs rejected for listing parties in a 100+ party case in a different order than the appellant did, and for affirmatively stating that there were no other parties of interest rather than checking a box to that effect. I spoke with one 20-year attorney with the federal government who said he had never had a brief rejected in any court until he dared to file in the Federal Circuit.

Many of us spoke to then-Chief Judge Michel about this, and things seemed to get better for a while. But it sounds like they are worse again. Hopefully Chief Judge Rader will take note.

Very odd. The Ariad docket reflects that only one brief was rejected (though that may not be accurate). The Therasense docket reflects that 2 amici have tried to file briefs (U. Kentuckey IP Law Society and David Hricik) and both have been rejected. The docket gives no reason for the rejections.

If this is correct that the clerk’s office is rejecting briefs in apparent ignorance of the court’s order, then that’s really annoying. I hope that’s not what’s happened.

Most of the rules for briefs are there for a reason, and lawyers shouldn’t be teling judges how to decide complex issues of law if they can’t figure out how to put together a brief, but the CAFC clerk’s office does have a bit of a reputation for going overboard in rejecting briefs.

I’m aghast that the Federal Circuit and especially their Clerk of the Court’s office can’t deal with this problem in a sensible way. Either the Order means what it says or it doesn’t. The current situation creates a total illustion that is frustratingly inefficient that’s not helping anyone, be it the amicus brief filer or the Federal Circuit.

anonymous, I heard that >50% brief rejection statistic from a worker in the clerk’s office. I repeated it to former CJ Michel in a conversation I had with him in a reception after a conference, and he didn’t take issue with its accuracy. I was suggesting that the court look into ways of reducing that figure. I continue to hope that the court will take measures to address the problem.

If this is true, then it’s a mistake by the clerk’s office. The Federal Circuit has used similar language in its recent en banc orders, and I don’t recall any similar problems arising in recent en bancs.

The CAFC clerk’s office is notorious for arbitrarily rejecting briefs (I doubt the figure is as high as 50%, but it may be), but I wonder if Prof. Mammen might have received some misinformation on this.

Dennis and Andrew Dhuey are correct: the en banc order clearly relieves would-be amici of the requirements of FRAP 29(a)-(b), and leaves all of the other requirements in place (timing, form, contents, etc.).

Goodness. If the clerks are rejecting these amicus briefs on the ground that they don’t include a motion for leave or the consent of all parties, they are rendering the court’s order meaningless. In ANY case, you can file an amicus brief without leave if you obtain the consent of all parties. Fed. R. App. Proc. 29(a). So, if unanimous consent or a motion is required here, what effect did the court’s order (“amicus briefs may be filed without leave of court”) have?

I have heard that over 50% of briefs filed at the CAFC are rejected for non-compliance with the rules. This is a huge waste of time, paper and money. I hope the court will take a close look at this. I doubt very much that other circuits reject briefs so frequently.